State v. Cox
| Citation | 977 A.2d 614,293 Conn. 234 |
| Decision Date | 25 August 2009 |
| Docket Number | No. 18211.,18211. |
| Court | Supreme Court of Connecticut |
| Parties | STATE of Connecticut v. Willie COX. |
The defendant, Willie Cox, appeals1 from the judgment of conviction, rendered after a jury trial, of attempt to commit assault of a peace officer in violation of General Statutes §§ 53a-167c2 and 53a-49.3 On appeal, the defendant claims that the state adduced insufficient evidence to sustain his conviction. We reverse the judgment of conviction.
The jury reasonably could have found the following facts. In the early afternoon of December 20, 2005, the New Alliance Bank on Quinnipiac Avenue in New Haven was robbed. Witnesses inside the bank claimed that the person who committed the robbery was a dark skinned male, wearing a black hooded jacket and a mask, and carrying what appeared to be a handgun. The perpetrator approached a bank teller, jumped over the counter after telling the teller to lay on the floor, took money off the counter and from a box that the teller had been handling, jumped back over the counter, and ran out the door through which he had entered. The bank's security guard tried to stop the man as he fled, but the man escaped.
As the perpetrator fled, both the security guard and a patron of the bank followed him. The patron was able to follow the perpetrator up the street and saw him get into the passenger side of a parked white automobile. The patron noticed that a man who had appeared to be lying down in the driver's seat sat up and drove the vehicle away. The patron was able to see the license plate number of the automobile before it pulled away. He also identified the automobile as a white Mitsubishi Eclipse with a black convertible top. The patron then returned to the bank and reported everything he had seen to the police.
A few blocks away, Officer David Runlett, a member of the New Haven police department, was directing traffic when he received a broadcast from the police dispatcher stating that the bank had been robbed and giving a description of the vehicle and the two people involved. Shortly thereafter, he spotted a vehicle approaching him that matched the description of the getaway vehicle. Runlett drew his service issued weapon, pointed it at the operator of the vehicle, and ordered him to stop. The operator stopped the vehicle and, after being ordered by Runlett to put his hands up, did so. The operator apparently changed his mind, however, and did not keep his hands up as ordered. Runlett began to approach the vehicle, ordering the driver to keep his hands up, when he observed a second man in the vehicle, the defendant, sitting in the backseat.
Runlett then observed that the defendant pointed his arms "aggressive[ly]" at Runlett, as if he were holding a weapon. Runlett did not, however, see or identify any particular weapon in the defendant's hands. The operator of the vehicle was positioned between Runlett and the defendant so that neither Runlett nor the defendant could have fired a weapon without first hitting the operator. Runlett began to move backward, creating distance between himself and the vehicle, when he heard the engine of the vehicle start revving. The operator of the vehicle then suddenly drove the car directly toward Runlett. As a result, Runlett fired his gun at the vehicle. Runlett continued to move backward and the vehicle sped past him. The vehicle subsequently was stopped by several police cruisers, and the operator was apprehended after a foot chase. The defendant, who also had fled on foot after the vehicle was stopped, was apprehended later that evening at a nearby house.
The record reveals the following procedural history. The defendant subsequently was charged in a three count information with: (1) robbery in the first degree in violation of General Statutes § 53a-134(a)(4); (2) larceny in the third degree in violation of General Statutes § 53a-124(a)(2); and (3) attempt to commit assault of a peace officer in violation of §§ 53a-167c(a) and 53a-49(a).4 During a jury trial, the state presented the testimony of Runlett, as well as the bank security guard, the bank teller, and several patrons of the bank who had witnessed the robbery. They all testified that the perpetrator carried a gun at the time of the robbery. The state also presented the testimony of Stanley R. Orzechowski, Jr., a bail enforcement agent, who was following the vehicle and corroborated Runlett's testimony. Orzechowski testified that after hearing a radio transmission concerning the description of a vehicle involved in a bank robbery, he observed a vehicle matching the description traveling near the location of the bank. He then followed the vehicle and observed the altercation between Runlett and the operator of the vehicle after the vehicle had been stopped. After Orzechowski observed the operator of the vehicle put his hands up and then bring them back down, he noticed a bald male passenger — the defendant — suddenly sit up in the backseat of the automobile. Orzechowski observed that the defendant pointed what appeared to be a weapon at Runlett. Orzechowski did not testify as to whether he observed the defendant attempt to use the gun.
Finally, the state presented the testimony of Miretzky Torres, a witness with whom the defendant had a brief conversation after fleeing the police stop earlier in the day and before being apprehended by the police. Torres testified that the defendant had surprised her as she was leaving the apartment of a friend and had offered her $20 for a short ride. She further testified that the defendant had admitted to her that he had robbed a bank earlier that day and that he needed to rejoin his friends. The defendant also told Torres that he had not carried a "real" gun during the robbery, but instead merely a BB gun. Torres testified that she was frightened and had informed the defendant that she could not give him a ride because she did not have a car. She then reported the incident to the police, who used the information to apprehend the defendant.
After the state rested its case, the defendant filed a motion for a judgment of acquittal, which the trial court denied. The trial court then discussed with counsel for the parties how it intended to instruct the jury. During that discussion, neither the parties nor the trial court specifically referenced the instructions to be given with regard to the charge of attempt to commit assault of a peace officer. Thereafter, the trial court instructed the jury on each count of the information. Significantly, with regard to the charge of attempt to commit assault of a peace officer, the trial court instructed the jury only on the attendant circumstances section of the attempt statute, § 53a-49(a)(1), and not on the substantial step section.5 After the trial court completed its jury instructions, it briefly excused the jury so that it could hear any exceptions from the parties as to its charge. The state commented on the scope of the trial court's jury charge with regard to the robbery and larceny charges, but it failed to take exception to or address in any way the charge with regard to attempt to commit assault of a peace officer. Neither party filed a request to charge the jury on the substantial step section of the attempt statute, § 53a-49(a)(2), and neither party took exception to the trial court's failure to charge the jury on that section.
After the jury's deliberations, the defendant was acquitted of the robbery and larceny charges and was convicted only of attempt to commit assault of a peace officer in violation of §§ 53a-167c(a) and 53a-49(a). The trial court thereafter rendered judgment in accordance with the jury's verdict, and sentenced the defendant to eight years incarceration. This appeal followed.
On appeal, the defendant claims that the evidence presented at trial was insufficient to support a conviction of attempt to commit assault of a peace officer. Specifically, the defendant contends that, because the trial court instructed the jury only on the attendant circumstances section of the criminal attempt statute, § 53a-49(a)(1), and not on the substantial step section, § 53a-49(a)(2), and because of the state's conduct throughout trial, culminating with its failure to take exception to the trial court's jury instruction, the state implicitly waived any right to a charge under the substantial step section. In addition, the defendant contends that the evidence offered by the state was insufficient to satisfy the attendant circumstances section of the attempt statute, the only section on which the trial court instructed the jury, and his conviction therefore should be reversed. In response, the state asserts that the defendant's claim is actually one of instructional impropriety by the trial court, not insufficiency of the evidence. The state claims that because this instructional claim was not preserved by the defendant at trial, the defendant is not entitled to appellate relief, and his conviction should be affirmed. Under the unique facts and circumstances of this case, we agree with the defendant.
We begin our review with an analysis of the crime of attempt to commit assault of a peace officer in violation of §§ 53a-167c(a) and 53a-49(a). See footnotes 2 and 3 of this opinion. ...
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...argument, the defendant relies primarily on our decisions in State v. Gonzalez, 222 Conn. 718, 609 A.2d 1003 (1992), and State v. Cox, 293 Conn. 234, 977 A.2d 614 (2009), in which we interpreted the differences between the attendant circumstances and substantial step subdivisions as “signif......